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Court of Criminal Appeal 6 November 2020

Rizk v R

[2020] NSWCCA 291

Drugs
CRIMINAL LAW SENTENCE APPEAL SENTENCE APPEAL SENTENCE APPEAL WHETHER SPECIAL CIRCUMSTANCES M INOR DIVERGENCES FROM STATUTORY RATIO

Citation: Rizk v R [2020] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 6 November 2020
Judge(s): Basten JA; Price J; Wright J

Background

The appellant was sentenced in the District Court on drug supply and related charges. Two additional offences were placed on a Form 1 (meaning they were taken into account at sentencing rather than sentenced separately): one involving possession of a prescribed restricted substance, and another involving supply of a prohibited drug.

During sentencing, the judge recorded the maximum penalty for the possession offence as 2 years imprisonment. In fact, the correct maximum under the Poisons and Therapeutic Goods Act 1966 (NSW) was 6 months. The error originated in written prosecution submissions, was corrected at the hearing, but then reappeared in the sentencing judgment.

The appellant also challenged the commencement date of his sentence and the non-parole period set against the aggregate sentence, arguing these involved further error. Leave to appeal was sought on all three grounds.

  • Whether the sentencing judge's misstatement of the maximum penalty for a Form 1 offence was a material error capable of affecting the aggregate sentence
  • Whether the sentence commencement date (fixed at the expiry of a revoked Intensive Correction Order) should instead have been backdated to run partly concurrent with time spent in custody following revocation
  • Whether the non-parole period set by the sentencing judge involved error, including whether a divergence from the standard statutory ratio (one-third balance of term to total sentence) required correction

Decision

Ground 1: Form 1 maximum penalty error

The Court accepted that the sentencing judge did act under a misapprehension about the maximum penalty for the Form 1 possession offence. However, the Court drew on Kentwell v The Queen (2014) 252 CLR 601 and principles drawn from administrative law to hold that not every sentencing error automatically vitiates the exercise of the sentencing discretion. Where an error can confidently be said to have had no effect on the outcome, it is properly treated as immaterial.

Several factors led the Court to that conclusion here. The mistaken maximum (2 years) represented only 10% of the maximum for the principal charged offence, as did the correct maximum (6 months). The sentence actually imposed was less than 25% of the maximum for the charged count. The maximum penalty for the Form 1 offence was mentioned only in the opening recital of the judgment and not referred to again. Critically, had that possession offence been charged separately, any sentence for it should have run wholly concurrently. The Court was therefore confident the error did not affect the exercise of the sentencing discretion.

Ground 2: Commencement date

The appellant's Intensive Correction Order had been revoked following his arrest for the principal offences, resulting in a fixed term of imprisonment that expired on 6 January 2019. The District Court backdated the aggregate sentence to commence on that date, effectively giving full credit for the time served under the revoked ICO. The Court of Criminal Appeal found no error in this approach, concluding the sentencing judge had appropriately considered the totality of time spent in custody.

Ground 3: Non-parole period

The appellant argued the non-parole period set by the sentencing judge produced a ratio of the effective non-parole period to total effective sentence that exceeded the standard 75% threshold, and that this required intervention. The Court rejected this ground. Minor divergences from the statutory ratio do not automatically constitute error, and the Court found no basis to infer that the sentencing judge had failed to properly consider the appropriate non-parole period. There was no real possibility that the question had been overlooked.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing error involving a misstatement of a Form 1 offence's maximum penalty will not automatically vitiate the sentencing discretion. Where the Court of Criminal Appeal can be confident the error had no bearing on the outcome, it may properly be characterised as immaterial and disregarded.
  • The principle from Kentwell v The Queen that certain errors "do not affect the exercise of the sentencer's discretion" is not confined to procedural irregularities but can extend to factual misstatements about the sentencing regime, provided the immateriality of the error is clear.
  • Form 1 offences are never separately quantified in a sentence, and where a lesser offence would in any event have attracted a wholly concurrent sentence, an error in identifying its maximum penalty is unlikely to have influenced the charged offence's sentence.
  • No error arises from setting a non-parole period that produces a modest divergence from the standard statutory ratio, so long as there is no positive indication that the sentencing court failed to consider the question.
  • In dismissing all three grounds, the Court of Criminal Appeal reinforced that criminal sentencing is a pragmatic balancing exercise, and appellate intervention requires more than a theoretical possibility that an error affected the result.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 164, 165
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 33, 44, 53A; Pt 5
- Criminal Appeal Act 1912 (NSW), s 5
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16
- Sentencing Act 1989 (NSW), s 5

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCA 255
- Lonsdale v R [2020] NSWCCA 267
- Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
- Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145